Martinkoski v. State

• Decision Date: 04 May 1971
• Docket Number: No. S,S
• Citation: Martinkoski v. State, 51 Wis.2d 237, 186 N.W.2d 302 (Wis. 1971)
• Parties: Joseph James MARTINKOSKI, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error. tate 158.
• Court: Wisconsin Supreme Court

Page 302

186 N.W.2d 302

51 Wis.2d 237

Joseph James MARTINKOSKI, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

No. State 158.

Supreme Court of Wisconsin.

May 4, 1971.

The order appealed from denied post-conviction motions of plaintiff in error whereby he sought to withdraw his pleas of guilty and to vacate the sentences imposed.

The plaintiff in error, Joseph James Martinkoski (hereinafter defendant or Martinkoski), was charged with two counts of burglary (sec. 943.10(1)(a), Stats.), and referred to in the record as cases G--7618 and G--7619. Both offenses were committed in Milwaukee county.

The defendant was originally arraigned on December 6, 1968, and pled not guilty to both charges. On January 8, 1969, the court heard the testimony of two court-appointed doctors and found that the defendant was insane and unable to stand trial. He was committed to Central State Hospital where he remained for about five months.

It was subsequently determined that the defendant was capable of standing trial. A hearing was held on June 13, 1969, at which the defendant attempted to change his pleas from not guilty to guilty. The trial judge personally questioned Martinkoski as to his age and education, and advised him of the possible sentences for each of the two charges, including the possible total of consecutive sentences. The court asked him what he was charged with in each case and defendant responded, 'Burglary, in each case, Your Honor.' The court then inquired into the existence of any threats or promises. The court also questioned defendant's counsel and the district attorney on the entry of the plea. The court again questioned defendant, and when some doubt arose as to his recollection of one of the burglaries the court refused to accept the plea of guilty change, reduced his bail and continued the matter until July 25th.

On July 25th defendant against appeared in court and expressed dissatisfaction with his attorney. The trial court then appointed his third counsel at public expense. The cases were remanded to the county court for a preliminary examination at the request of defendant's new counsel, Mr. John McCormick, and the defendant subsequently pled not guilty to both charges in the trial court on August 22, 1969. Then on December 31, 1969, the defendant and his counsel appeared in court and again moved to change the pleas to guilty.

The court again questioned the defendant at length, inquiring into his age and education, and explained the possible penalties which could be imposed. The court asked Martinkoski what he was charged with and the following colloquy took place:

'THE COURT: In those cases what are you charged with?

'THE DEFENDANT: Burglary, your Honor.

'THE COURT: Specifically case number G--7618 you are charged with the burglary on September 20, 1968, of the building located at 2912 - 13th Avenue, City of South Milwaukee in this County. Do you understand that?

'THE DEFENDANT: Yes, your Honor.

'THE COURT: Is that the case * * * is that one of the two cases to which you wish to change your plea to guilty to that charge?

'THE DEFENDANT: Yes, sir.

'THE COURT: And the other case that we are talking about, G--7619, you are charged with the burglary on November 14th of last year, of 1968, with the burglary of a dwelling at 7020 Grant Parkway in the City of Wauwatosa in this County. Do you understand that?

'THE DEFENDANT: Yes, your Honor.

'THE COURT: Is that also the other case in which you wish to withdraw your plea of not guilty and enter a plea of guilty thereto?

'THE DEFENDANT: Yes, your Honor.'

The court went on to inquire extensively into the existence of any threats or promises and whether the defendant had decided to change his plea freely and voluntarily. The defendant's attorney was also asked in the presence of the defendant whether he was satisfied that the plea was made freely and voluntarily and he responded that he was, stating that he had gone over it with the defendant numerous times. He was also asked by the court whether he was satisfied that Martinkoski understood the nature of the charges against him and the implication of the plea change. Counsel answered that there was no question about it.

The court then continued questioning the defendant as to the existence of any promises and his understanding of the possible sentence. Defense counsel stated 'for the record' that he and the defendant had gone over the statutes together and that the defendant was fully cognizant of the possible penalties. The court then proceeded to explain to the defendant that by entering pleas of guilty he was relinquishing his constitutional rights against self-incrimination, to a trial by jury, and to confront his accusers. After several more questions the defendant stated that he had decided to change his plea several weeks before.

Testimony concerning both offenses was heard by the trial court as well as a series of 'read-in' charges. The defendant's pleas of guilty were accepted by the trial court and he was found guilty of the two charges of burglary. Following a presentence investigation defendant was sentenced to two indeterminate terms not to exceed seven years each, such sentences to run concurrently.

At the time of the entry of the defendant's pleas, the prosecution and the defendant stipulated that a third charge of burglary then pending against him would be dropped and not subsequently issued or charged against him. In discussing this stipulation both the court and the district attorney referred to it as being a stipulation to dismiss the third charge 'without prejudice.'

On June 18, 1970, the defendant, by the State Public Defender, filed a postconviction motion for leave to withdraw his pleas of guilty and for an order vacating the sentences previously imposed. The motion was heard and denied by the trial court on July 27, 1970. A writ of error directed to the order denying that motion was issued on July 31, 1970.

James H. McDermott, State Public Defender, Madison, for plaintiff in error.

Robert W. Warren, Atty. Gen., William F. Eich, Asst. Atty. Gen., Madison, for defendant in error.

BEILFUSS, Justice.

Two issues are presented:

(1) Does the record made in the trial court support the court's conclusion that the defendant's guilty pleas were made voluntarily and intelligently?

(2) Did the court's use of the phrase 'without prejudice' in granting the state's motion to dismiss another charge negate the finding that the defendant's guilty pleas were made voluntarily and intelligently?

The defendant argues that the granting of his postconviction motion to withdraw his pleas of guilty is necessary to correct a manifest injustice in that his pleas were not made voluntarily and intelligently. The primary basis for this assertion is that the trial court did not establish his understanding of the nature of the offenses with which he was charged as required by the United States Supreme Court's decision in Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, which made Rule 11 of the Federal Rules of Criminal Procedure (18 U.S.C.A. p. 557), as interpreted by McCarthy v. United States (1969), 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418, applicable in state courts. The Boykin decision was implemented in Wisconsin by this court's decision in Ernst v. State (1969), 43 Wis.2d 661, 170 N.W.2d 713.

This court has continually stated that the defendant has the burden of establishing that his plea was made involuntarily or unintelligently. Drake v. State (1969), 45 Wis.2d 226, 229, 172 N.W.2d 664. And when the trial court has heard the evidence presented on a motion to withdraw a plea of guilty this court will not upset the factual findings of the trial court unless they are contrary to the great weight and clear preponderance of the evidence. Ernst v. State, supra, 43 Wis. at p. 668, 170 N.W.2d 713.

At the hearing held in this case the defendant was asked the following question:

'Q. Mr. Martinkoski, prior to December 31 of 1969 did your then attorney Mr. McCormick, of Milwaukee ever fully advise you or instruct you as to what the elements of the crime of burglary with intent to steal are?'

The defendant answered, 'No, he did not.' There were no other similar or related questions asked of the defendant and this was the only evidence presented which touched upon this basis for his motion. There is no suggestion in the testimony taken at the hearing that the defendant was unaware of the nature of the charge. The defendant never, in fact, claimed that he did not understand the nature of the charge when he made his pleas.

The defendant does not dispute the above, nor does he think it relevant. Rather, he argues that no matter if he understood the nature of the charges or not, he should still be entitled to withdraw his pleas since the trial court failed to create a record which reflects his understanding of the nature of the offense, but only that he knew the name of the offense with which he was charged.

The defendant submits that before accepting his pleas the court should have established on the record that the defendant specifically understood that the charge meant that he had: (1) Intentionally entered each of the places involved in the charges: (2) that his entry of each of such places was without the consent of the person in lawful possession thereof and that he knew that his entry was without such consent; and (3) that he entered each of such places with intent to steal. The defendant argues that the record must reflect that he knew and understood the elements of the offense as they are stated in Wisconsin Jury Instructions--Criminal. But a review of the McCarthy and Boykin decisions indicates that neither one demands a detailed discussion of the elements of the offense, and this court's decision in Ernst did not so interpret them.

The significance of the McCarthy decision was explained in Ernst v. State, supra, 43 Wis.2d at pp. 672, 673, 170...